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Karnataka High Court

The Managing Director, Nwkrtc, Hubli vs Kavita W/O Dyanadev Hitane on 2 March, 2018

Author: Krishna S Dixit

Bench: Krishna S.Dixit

                             1        MFA No.22483/2012
                                             C/w.
                                      MFA No.24340/2012




          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 02 n d DAY OF MARCH 2018

                           BEFORE

       THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT

             M.F.A. No.22483 of 2012 [MV]
                            C/w.
             M.F.A. No.24340 of 2012 [MV]



In MFA No.22483/2012:
BETWEEN:

1.   THE MANAGING DIRECTOR, NWKRTC, HUBLI
     REP. BY ITS DIVISIONAL CONTROLLER,
     NWKRTC, BELGAUM DIVISION, BELGAUM
     REP. BY ITS CHIEF LAW OFFICER,
     HUBLI
                                            ... APPELLANT
(By Smt P R BENTUR ADV.)

AND:

1.   KAVITA W/O DYANADEV HITANE
     AGE: 28 YRS, OCC: HOUSEHOLD WORK,
     R/O YARDURWADI, TQ: CHIKKODI,
     DIST: BELGAUM & OTHERS

2.   PRASHANT DNYANADEV HITANE
     AGE: 7 YRS, OCC: STUDENT,
     R/O YARDURWADI, TQ: CHIKKODI
     DIST: BELGAUM
                             2            MFA No.22483/2012
                                                C/w.
                                         MFA No.24340/2012




     SINCE MINOR REP. BY THEIR
     NATURAL MOTHER PETITIONER NO.1

3.   OMKAR DNYANADEV HITANE
     AGE: 5 YRS, OCC: NIL,
     R/O YARDURWADI, TQ: CHIKKODI
     DIST: BELGAUM
     SINCE MINOR REP. BY THEIR
     NATURAL MOTHER PETITIONER NO.1

4.   SADASHIV RAMACHANDRA HITANE
     AGE: 68 YRS, OCC: NIL,
     R/O YARDURWADI, TQ: CHIKKODI
     DIST: BELGAUM
                                         ... RESPONDENTS

(By Sri. VITHAL S TELI ADV. FOR R1-R3;
      R4 DELETED VCO DTD.27.03.2015)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 20.01.2012
PASSED IN MVC NO.2652/2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-IV, BELGAUM,
AWARDING THE COMPENSATION OF RS.6,16,000/- WITH
INTEREST AT THE RATE OF 9% PER ANNUM FROM THE DATE
OF PETITION TILL THE DATE OF ACTUAL DEPOSIT.

In MFA No.24340/2012:
BETWEEN:

1.   KAVITA W/O DYANADEV HITANE
     AGE: 28 YEARS, OCC: HOUSEHOLD WORK

2.   KUMAR PRASHANT S/O DYANADEV HITANE
     AGE: 7 YEARS, OCC: STUDENT

3.   KUMAR OMKAR DAYANADEV HITANE
     AGE: 5 YEARS, OCC: NIL
                              3              MFA No.22483/2012
                                                   C/w.
                                            MFA No.24340/2012




     APPELLANT NOS.2 AND 3 ARE MINORS
     REPRESENTED BY THE NATURAL GUARDIAN MOTHER
     KAVITA W/O DAYANADEV HITANE
     ALL R/O. YADURWADI, TAL: CHIKODI
     DIST: BELGAUM
                                        ... APPELLANTS
(By Sri. VITTHAL S TELI Adv.)

AND:

       THE MANAGING DIRECTOR
       N W K R T C, HUBLI, REPRESENTED BY
       ITS DIVISIONAL CONTROLLER
       NWKRTC, BELGAUM DIVISION,
       BELGAUM
                                              ... RESPONDENT
(By SMT.P R BENTUR ADV.)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 20.01.2012
PASSED IN MVC NO.2652/2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-IV, BELGAUM,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

      These appeals coming on for Admission, this day the
Court delivered the following:-

                        JUDGMENT

The judgment and award dated 20.01.2012 made by the Fast Track Court-IV in MVC No.2652/2010 is in challenge before this court in the appeal filed by the NWKRTC and another appeal filed by the claimants. 4 MFA No.22483/2012

C/w.

Therefore, these matters are clubbed together and taken up for disposal by a common judgment.

2. The brief facts stated are: In a vehicular accident involving NWKRTC bus bearing registration No.KA-23/F-198 that happened on 23.10.2010, one Dnyanadev Sadashiv Hitane sustained fatal injuries and succumbed to the same on the spot.

3. The claimants being the legal representatives of the deceased had claimed a compensation of Rs.10,00,000/-. The NWKRTC filed its Written Statement resisting the claim petition on various grounds. From the side of claimants, the first petitioner namely Smt.Kavita Dyanadeve Hitane, the widow of the deceased was examined as PW-1 and seven documents were marked as Exs.P-1 to 7. None was examined on the side of the NWKRTC to prove their version of defence.

C/w.

4. The Tribunal, relying upon the copy of the FIR/Complaint at Exs.P1 & P2 and the charge-sheet filed by the police after investigation into the offence at Ex.P-7 coupled with the oral and documentary evidence has awarded a compensation of Rs.6,16,000/- accumulated under various heads. The same is in challenge before this Court.

5. The learned counsel for the claimants contends that the deceased was aged 32 years when he breathed his last on account of accident and by occupation, he was an agricultural coolie. The counsel further submits that even going by the Chart of the Notional Income that is being operated by Lok Adalath, the income of an agricultural coolie ought to have been taken for the said year at Rs.5,500/- whereas the Court below has taken only Rs.4,000/- arbitrarily. There is force in the submission of the learned counsel, although the counsel for the respondent NWKRTC opposes the same.

C/w.

6. The counsel for the claimants next contended that the Court below ought to have made 40% addition to the income towards future prospects in view of the Judgment of the Apex Court in the case of Hemaraj Vs. Oriental Insurance company, MANU/SCOR/49095/2017, decided on 22.11.2017. The unnumbered Paragraphs 4 and 5 of the Judgment read as under:

"The contention raised on behalf of the appellants is that in the light of the said judgment 40% increase on estimated income towards future prospects is required to be taken into account as the deceased was 40 years age. Learned counsel for the Insurance Company submitted that in absence of actual evidence of income the principle of adding on account of future prospects cannot be applied where income is determined by guess work.

C/w.

We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guess work in the facts and circumstances of a case. Both the situations stand at the same footing.

             Accordingly,            in        the           present       case,
             addition          of        40%            to      the       income

assessed by the Tribunal is required to be made. The Tribunal made addition of 50% while the High Court has deleted the same."

7. Here too there is a lot of force in the submission of the learned counsel. However, the learned counsel for NWKRTC contends that the question of addition of 40% or any other percent will arise only when the deceased had income from a regular salary or the like and therefore the coolie earning variable wages is not entitled to such addition.

8. However, the Apex Court has answered this point saying that there cannot be any distinction 8 MFA No.22483/2012 C/w.

between the person earning regular salary and the person earning variable wages even when such wages are measured by notional values. Therefore, the contention of the counsel for the NWRTC is liable to be rejected and that of the counsel for the claimants is entitled to be accepted.

9. The counsel for the claimants next contended that the claimants were entitled to in all a sum of Rs.70,000/- by way of compensation under conventional head such as transportation of the dead body, funeral, etc., in view of the decision of the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi, AIR 2017 SC 5157. He draws my attention to sub-para (viii) of paragraph 61 of the Apex Court Judgment which reads as under:

"61. In view of the aforesaid analysis, we proceed to record our conclusions:-

(i) x x x

(ii) x x x 9 MFA No.22483/2012 C/w.

xxx

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

10. Although the learned counsel for NWKRTC vehemently contended that the award of compensation is too much on the higher side going by any standard since the deceased was only an agricultural coolie and therefore, the norms that are operated by the Apex Court in the aforesaid judgment cited by the counsel for the claimants are not invokable in the factual matrix of this case. I find it difficult to accept this submission. Accordingly, the same is rejected.

11. The learned counsel for the claimants fairly submits that earlier there were four legal heirs who represented the estate of the deceased and one of 10 MFA No.22483/2012 C/w.

them namely Sri.Sadashiv R.Hitane, father of the deceased has now breathed his last and therefore the deduction value has to be 1/3 r d and not 1/4 t h in the altered circumstances. The fairness of the counsel for the claimants is placed on record and accordingly the values are altered by effecting deduction of 1/3.

12. The panel counsel for the NWRTC vehemently contended that since the compensation is being enormously increased by operating new norms laid down by the Apex Court, there should not be any alteration in the rate of interest awarded by the Court below. The counsel contends that going by the statistical data of the cases, the rate of interest ordinarily awarded in these matters does not exceed 6% barring in a few exceptions. There is force in this argument and therefore the rate of interest awarded by the Court below is reduced from 9% to 7.5% keeping in view the global scaling down of interest rates.

C/w.

13. Thus, recalculation of compensation is done with altered values as per the table below:

Sl.

                       Heads                         Amount
      No.
       1  Loss of dependency:                       Rs.9,85,690/-
              (Rs.5,500/- * 1/3 =1,833.33)
              [Rs.5500-1833.33=3667]

Rs.3,667/- x 12x16 = Rs.7,04,064/-

ADD 40% i.e., Rs.2,81,626/-

TOTAL: Rs.9,85,690/-

3 Other conventional Heads: Rs.70,000/-

TOTAL: Rs.10,55,690-

14. Wherefore, the appeal filed by NWRTKC and the appeal filed by the claimants are partly allowed.

The compensation amount awarded by the Court below vide impugned Judgment and award is enhanced from Rs.6,16,000/- to Rs.10,55,690/- with reduced rate of interest at 7.5% per annum from the date of petition till realization, all other conditions having been left intact.

C/w.

15. The counsel for the claimants submits that the amount deposited in the Registry as a statutory pre-condition for maintaining this appeal be transmitted to the Court below for withdrawal. The Registry is accordingly directed to transmit the said statutory deposit to the Court below, which shall release the same to the claimants after ascertaining the credentials.

Sd/-

JUDGE RK/-